HKSAR v. CHOW HANG TUNG AND OTHERS

Press Summary (English)

Press Summary (Chinese)

WKCC 3633/2021

[2023] HKMagC 2

IN THE WEST KOWLOON MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3633 OF 2021

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V E R D I C T

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CONTENTS

Introduction
The Facts
Public Interest Immunity and Legal Professional Privilege
Preliminary issues
The Trial proper
The Evidence

PW1
PW2
D1
The principles, history and the operation
Explanation on the $20,000 from Org 4
Explanation on the $3,000 from “Asia Democracy Network”
Interaction with other entities
Donations
The allegation of foreign agent
Incorrect construction by PW1
Unreasonableness
Oppression
Legal issue
Other matters

Systemic
The National Security Law
The Implementation Rules
Operational
“Reasonable grounds to believe” it to be a foreign agent
The material times
Reasonable belief as to necessity
Use of wordings
Retrospective
Alternatives
Ulterior motive
Oppression
Balancing
Issuing the Notice
Conclusion

Introduction

1.  D1, D2, D5 and others are facing one count of failure to comply with notice to provide information.

2.  The particulars of the offence:

“… on the 8^th day of September, 2021, being an office-bearer of Hong Kong Alliance in Support of Patriotic Democratic Movements of China in Hong Kong, or a person managing or assisting in the management of the said organization in Hong Kong, who has been served with a notice under section 3(1)(b) of Schedule 5 to the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (Instrument A406A), failed to comply with the said notice[1].”

3.  I have dealt with D1 before in other proceedings; as a professional Magistrate I will eliminate all irrelevant matters not relating to the present case and ensure a fair trial.

4.  There are multiple Defendants in this case and each case must be considered separately.

5.  Sch. 5 s1 states:

“………………..

foreign agent (外國代理人)-

(a) means a person who carries on activities in Hong Kong, and-

(i) is directly or indirectly directed, directly or indirectly supervised, directly or indirectly controlled, employed, subsidized or funded by a foreign government or foreign political organization, or accepts monetary or non-monetary rewards from a foreign government or foreign political organization; and

(ii) carries on all or part of the person’s activities for the benefit of a foreign government or foreign political organization; but

(b) does not include a diplomatic agent, a consular officer, or an employee of a consular post, who is entitled to privileges and immunities in Hong Kong in accordance with the laws of Hong Kong, or any other person or body that is entitled to privileges and immunities in Hong Kong in accordance with the laws of Hong Kong;”

6.  Sch. 5 s3 states:

“Regulation of foreign or Taiwan agents

(1) If the Commissioner of Police reasonably believes that it is necessary to issue the requirement for the prevention and investigation of an offence endangering national security, the Commissioner may from time to time, with the approval of the Secretary for Security, by written notice served on a foreign agent or Taiwan agent, require the agent to provide the Commissioner with the following information within the specified period in the specified way-

……………………

(b) if the agent is an organization-

(i) the personal particulars of the staff of the organization in Hong Kong, and of the members of the organization in Hong Kong (including name, age, type and number of identification document, occupation and residential address);

(ii) the activities of the organization in Hong Kong;

(iii) the assets, income, sources of income, and expenditure of the organization in Hong Kong.

……………………

(3) If a foreign agent or Taiwan agent is an organization-

(a) the obligations imposed on the agent by subsection (1)(b) is binding on every office-bearer in Hong Kong, and on every person managing or assisting in the management of the organization in Hong Kong, if the office-bearer or person has been served with the notice under subsection (1); and

(b) if the agent fails to comply with a notice served under subsection (1)(b), every office-bearer and person who is mentioned in paragraph (a) and who has been served with the notice commits and offence and is liable on conviction on indictment to a fine of $100,000 and to imprisonment for 6 months unless the office-bearer or person establishes to the satisfaction of the court that the office-bearer or person has exercised due diligence and that the office-bearer or person has failed to comply with the notice for reasons beyond the office-bearer’s or person’s controls.”

The Facts

7.  The Hong Kong Alliance in Support of Patriotic Democratic Movements of China[2] (HKA) was incorporated in 1989 as a company under the Companies Ordinance until the recent winding up.  At all material time, D1 was the vice-chairperson while D2 and D5 were committee members.

8.  On 25 August 2021, the Commissioner of Police in pursuance NSL 43 and Sch. 5 of the Implementation Rules (IR) issued and served Notice on D1, D2, D5 and others, requiring for some specified information in writing with supporting documents within 14 days.

9.  Before the expiration of the prescribed period, HKA held a press conference announcing their non-compliance and subsequently presented an open letter to the Commissioner on the last day of the period to show their dogged determination of non-compliance.

10.  The Defence asserted that:

(1)  They were not foreign agent of any organization;

(2)  They will challenge the legality of the Notice;

(3)  They will take issues on numerous aspects;

(4)  Infringement of rights against self-incrimination[3] and the rights to a fair trial[4], freedom of association[5] and protection of privacy[6].

Public Interest Immunity and Legal Professional Privilege

11.  The prosecution claimed Public Interest Immunity (PII) mainly on the grounds that the disclosure would jeopardise the ongoing investigation.

12.  The investigation report[7] and the recommendations[8] (see attachments [1] and [2]) were not solely targeted at HKA, but also related to ongoing investigation into other organizations and persons (the other targets).

13.  I have gone through all materials including the supporting affirmation of the Chief Secretary.  I followed the steps laid down in HKSAR v Nyab Amin[9]. My ruling on PII was not final, I have monitored the developments throughout the trial and review when necessary to fit the best interest of the Defence.

14.  The investigation is large-scale and still ongoing.  National security is utmost importance to public interest.  Leaking of secret information, such as identities, strategies and interim investigation results of others would definitely seriously jeopardise the ongoing investigation.

15.  The key defence is the legality of the Notice, after the preliminary rulings, to prove as a matter of fact the subject organization was a foreign agent is not required.

16.  I ordered a redaction on:

i.    The identities of entities/person are subject to ongoing investigation;

ii.   All acts, activities, roles and interim investigation results which could be reasonably be regarded as leading to the leaking of the identities;

iii.  All information relating to ongoing investigation, but not related to HKA and the Defendants;

in order to minimize the risk of any sidetrack strategy leading to reasonably guessing as to the identities of the targets; especially the exact amount or details of monetary transactions.  After balancing, I deployed some safeguards, only to disclose the figures in number of digits.

17.  The focus is on the factual nexus involvement leading to the triggering of the measure rather than the identities of others.  I do not see the non-disclosure of materials, other than which related to HKA and the Defendants would undermine a fair trial.

18.  The PII is based on the said direction, I came to the view that the anonymity with limited disclosure of some factual nexus be sufficient for purpose of conducting the defence case and ensuring a fair trial.  I am satisfied there is no possible detriment or disadvantage of any kind or degree to the Defence.

19.  As to the legal advice given by the Department of Justice, it is protected by Legal Professional Privilege.

Preliminary issues

20.  Two issues have been posed for preliminary determination:

“(1) Legality of the Notice

Whether it is open to the defence to challenge the legality of the Notice in the context of Schedule 5 to the Implementation Rules in a criminal trial.

(2) Elements of the offence

Under Section 3(3) of Schedule 5 to the Implementation Rules, whether the prosecution need to prove the subject organisation was as a matter of fact a foreign agent.”

21.  I deal with the second issue first. 

22.  The information required under Sch. 5 are related to privacy, any overriding of fundamental rights should take a narrow approach. 

23.  NSL 43 confers on the Police some power to obtain information by two means:

(1)  By a Police Notice under Schedule 5.

(2)  By a Production Order issued by a CFI Judge under Schedule 7.

24.  There is a statutory definition of foreign agent under Sch. 5 s1, but silent on the criteria to identify a particular organisation as a foreign agent (the threshold). 

25.  Under Schedule 7:

“Requirement to furnish information and produce materials

(1) The Secretary for Justice may, for the purpose of an investigation into an offence endangering national security, make an ex parte application to the Court of First Instance for an order under subsection (2) in relation to a particular person or persons of a particular description.

(2) The Court of First Instance may, if on such application is satisfied that the conditions in (4)(a), (b) and (d) or 4(a), (c) and (d) are fulfilled, make an order complying with subsection (3) in respect of the particular person or persons of the particular descriptions to whom the application relates.”

26.  Under Sch. 7 s2(4):

“………………….

(b) Where the application relates to a particular person that there are reasonable grounds for suspecting that the person has information, or is in possession of materials likely to be relevant to the investigation;

(c) Where the application relates to persons of a particular description, that -

(i) there are reasonable grounds for suspecting that some or all persons of that description have such information or in possession of such material, and”

27.  An analogy can be drawn between Schedule 5 measure and Schedule 7 on some special features.

	Schedule 5	Schedule 7
Purpose	The Commissioner of Police reasonably believes that it is necessary for prevention and investigation of any offence endangering national security	The Secretary of Justice may, for the purpose of an investigation into an offence with reasonable grounds for suspecting endangering national security has been committed
The recipient	Foreign agent	The person in possession of the information or materials relevant to the investigation
Threshold to identify the recipient	No mentioned	Reasonable grounds for suspecting
Issuing authority	Commissioner of Police with the approval by Secretary for Security	Ex-parte application to the Court of First Instance by the Secretary for Justice
Nature of order	Notice to produce	Production Order
Frequency	From time to time	No mentioned
Maximum penalty	6 months imprisonment and a fine of $100,000	12 months imprisonment and a fine of $100,000

28.  There is no doubt that the Sch. 5 measure is comparatively less stringent than that under Sch. 7.

29.  NSL 3 states:

“…………………………..

It is the duty of the Hong Kong Special Administrative Region under the Constitution to safeguard national security and the Region shall perform the duty accordingly.

The executive authorities, legislature and judiciary of the Region shall effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with this Law and other relevant laws.”

30.  Taking together both the effectiveness requirement under NSL 3, and the said special features of the Sch. 5; the IR is intended to provide an effective administrative procedure to facilitate the implementation of the National Security Law, in particular to NSL 43(5).

31.  I have the following observations:

(1)  It is clear that measures taken under Sch. 5 are meant to be responsive and effective, which is the purpose of NSL 3.

(2)    To set up a foreign agent or any associate with it is not an offence.  There is no mandatory scheme or mechanism for setting up a foreign agent.  It can even be as simple as registered as a company.  As for an individual, there is also no requirement for registration.

(3)  There is no mechanism or scheme for setting up a foreign agent, nor is there any list thereof.

(4)  A foreign agent is inevitably associated with overseas connections.  To seek information, assistance from foreign authorities is unavoidable but, that would also be delayed with unexpected difficulties and even be unfeasible under the current climate.  The lawmakers were well aware of that situation and the difficulties.

(5)  Sch. 5 measure is comparatively less stringent than Sch. 7 for reasons that:

(i)    At a more peripheral stage.

(ii)   Less severe on the maximum penalties upon violation.

(iii)  More simplified in procedure.

32.  From the above observations, I conclude that:

a)  Lesser severity of the measure should be proportionate to lesser stringency of the threshold.

b)  The overall purpose of Sch. 5 is an effective measure for prevention and investigation of matters relating to national security.  To be effective, the measure must be responsive and efficient.

c)  There is a deliberate silence on the threshold requirement for identification of a foreign agent; obviously the rule‑makers were minded to create some flexibility for the Commissioner to exercise his professional judgment at that juncture, regardless of the strict rules of evidence, the burden and standard required in a criminal trial.

d)  Identifying the foreign agent is the entry to and also part and parcel of the long process of effective prevention and investigation.  Looking into the background and the purpose of the promulgation coupled with the deliberate silence on the threshold requirement; it is clear that the lawmakers and the rule-makers were not intended to create the proof of foreign agent as a matter of fact be an element of the offence upon non-compliance.

e)  Prevention and investigation is a state of surmise, the threshold must be relatively low, even not requiring prima facie proof.

33.  I rule that as a matter of law:

(1)  The concept of foreign agent is the conclusion of an administrative decision at that juncture, not an essential constituent element that the prosecution has to prove at the trial.

(2)  The prosecution need not prove the subject organisation was as a matter of fact a foreign agent. 

34.  I move back to the first issue.

(1)  There is no existing mechanism for licensing nor registration of foreign agent.  The norm is all entities are without obligation to disclose their composition, activities or means unless by stipulation.

(2)  I am not convinced that, as a matter of law, the defence is barred from challenging the legality of the Notice on aspects not been ruled by me.

I rule that the defence is entitled to challenge the legality of the Notice at trial for matters not been dealt with before.

The Trial proper

35.  After my rulings on the preliminaries, the remaining issues for the trial proper is mainly on the legality of the Notice.

The Evidence

PW1

36.  Superintendent Hung was in charge of the investigation team as well as the applicant to the Commissioner for the Sch. 5 Notice.  He prepared an investigation report[10] refined the information therein and submitted his application with recommendations[11] to the Commissioner who subsequent endorsed them with final approval by the Secretary for Security.

37.  In the investigation report and the application, HKA was amongst the other targets for the Sch. 5 measure.

38.  For easy reference, Mr Cheung for the prosecution has prepared a chart[12] (see attachment [3]) on the key points of:

(i)   The relevant information with the corresponding contents in the investigation report which was confirmed in evidence;

(ii)  The information put forward to the Commissioner for consideration.

39.  PW1 explained that even though some information could be retrieved from other sources, but still necessary for cross-checks on completeness, accuracy, mistakes and different interpretation.

40.  Under the marathon and intensive cross examination by D1 on numerous aspects, mostly circling around on:

(1)  By using a lot of guessing tactics from all angles aiming at retrieval of the redacted information, in particular the identities of the organizations and persons; trying to establish HKA was not a foreign agent as PW1 had thought.

(2)  To distinguish the exact wordings of the political ends of HKA from other organization, to illustrate they were not on the same track; such as “to end one party ruling” as oppose to “end one party dictatorship” and “to rebuild a democratic China” as oppose to “to build a democratic China”;

(3)  To laid the basis for her subsequent testimony to establish or raise doubt on to HKA not being any foreign agent with some examples;

(4)  The query about the possible unreasonableness, that some information could be retrieved from other source;

(5)  Make suggestion that certain description and events could have more than one interpretations and highlight some participants with double status who participated in a capacity not related to HKA;

(6)  Suggestion of ulterior motive; bring out the disparity to illustrate possible fabrication as the Police had commenced strike off proceedings against HKA almost at the same time without mentioning HKA was a foreign agent.

PW2

41.  PW2 was the arresting officer upon instructions arrested D1 at her office on 8 September 2021.

42.  All Defendants have clear record, I have to consider their propensity and also the credibility of D1 as she testified.

D1

43.  D1’s testimony was that she joined HKA after her graduation from university and had held different positions, including part time staff, volunteer, committee member and lastly became the vice-chairperson in 2015 till the compulsory strike off from the Companies Registry.  She told about what she had experienced over the years as well as some of her observations.

The principles, history and the operation

44.  HKA was a joint organization of lots of bodies.  D1 reiterated HKA had never an agent or a puppet of any foreign entity.  It acted independently according to their own objectives.  Their Memorandum and Article of Association stipulated the income and property be applied solely on the promotion of their objects.  Under the mechanism, the highest decisions were made at the general meeting and the committee was responsible for the daily operation.

Explanation on the $20,000 from Org 4[13]

45.  HKA had launched an appeal for donations for the extension of their June 4 museum by purchasing a property at $8,000,000.  They had been receiving donations from various bodies including a one-off donation (not funding) of $20,000 from an entity which was a stranger and never had and would not have other dealing with HKA.

Explanation on the $3,000 from “Asia Democracy Network”

46.  It was her personal reward for writing articles and nothing to do with HKA.  Since the request was about HKA’s affair and it had nothing to do with her personal matters.

Interaction with other entities

47.  In the course of its normal business, HKA had met with other entities which shared common objectives and involved in some interactions, including cooperation and joint participation in some activities and yet, it had never been an agent or acting for others’ interest.

Donations

48.  HKA accepted general donations, but the donors had no say in HKA’s operation nor had there been any case that it had acted for their interest.

The allegation of foreign agent

49.   D1 alleged that it was the Government’s tactics for propaganda to shift the focus from the international eye.

Incorrect construction by PW1

50.  HKA never used such slogan:

•  rebuild a democratic China as oppose to build;

•  end one party ruling as oppose to directorship.

51.  PW1 had misunderstood the status of some participants who had more than one capacities who shown up in HKA activities.

52.  D1 criticised PW1’s suggestion of the alleged common purpose was not substantiated

Unreasonableness

53.  D1 criticised the requirement is too harsh, too much, and too far.

54.  She contended some of the information could have been retrieved from other sources, such as the director’s list from the Companies Registry, the account ledger from auditor, activities from the yearbooks and activities pamphlets or open announcements.

55.  To retrieve information of the staff even dated back to 1989 is unreasonable since it was so long ago and with lots of difficulties.  They even lost contacts with some of the staff. Furthermore, asking for identity card numbers and date of birth would trigger privacy issues.

Oppression

56.  Due to insufficient manpower and resources to deal with such large amount of information required, some of which even stored in the warehouse causing hardship.  However, D1 agreed no specific arrangement nor steps had been taken to retrieve it, they only had discussion.

Legal issue

57.  The requirement for provision under Sch. 5 s3(1) is “… to provide the Commissioner with the following information in writing, together with the relevant supporting documents, …”, however the extra requirements of “in writing” and “together with supporting documents” are outside the perimeter of Sch. 5.

Other matters

58.  D1 also asserted that:

•   the issue of the Notice was an abuse with an ulterior purpose of doxing information of all civil societies;

•   Political persecution;

•   HKA had no obligation to assist the Police.

Evaluation of evidence

59.  PW1’s testimony was focused on the information from his team’s investigation and his analysis.  He was unshaken under intensive and marathon cross-examination.  He was not narrow-minded, and was willing to accept suggestions of possible multi-interpretations or misunderstanding without hesitation or delay.

60.  PW1 declined to give answer on some areas due to the possible risk of jeopardising the restrictions in PII. Since he was in-charge of the whole information and in the know of the ongoing investigations, he was in the best position to evaluate the potential risk of leaking information; in particular he had been at the centre of an guessing exercise.  His refusal to answer was justified.

61.  I am satisfied PW1 was an honest and truthful witness.  I am satisfied when he evaluated the investigation result from his team members, he held an honest belief in its truthfulness.  In this regard he performed an honest and bona fide analysis in his best endeavour and professionalism.  I accept the flaws from the misinterpretation and misunderstanding would not affect his overall judgement.  I accept his evidence in the factual aspect and also the facts that exhibits P19(1) and P20(1) are his honest and bona fide analysis and recommendations, being direct and not bent by the flaws.

62.  However, this is not the end of the matter.  As to his analysis, I still have to take a panoramic look into the operational and other legal aspects on that factual basis.

63.  PW2 was honest and truthful.  He was the arresting officer with insignificant role in the incident and there was no challenge on his credibility and truthfulness of his testimony.  I accept his evidence.

64.  D1’s testimony can be divided into:

(i)    a description of the nature of HKA;

(ii)   her role in HKA and her experience;

(iii)  the factual material about certain incidents;

(iv)  her complaint of the faults in the Notice;

(v)   her criticism of the analysis of PW1.

65.  For the factual aspect, the prosecution was not in any position to challenge the truthfulness and the substance as PW1 was an outsider did not have any participation in HKA’s activities; on this basis I accept those facts for the purpose of this trial.  With regard to her speculative observations, those were lack of foundation, I cannot accept that.

66.  As to her observations related to legal aspects, I will deal with that in due course with the accepted factual basis.

67.  Her suggestion of options for retrieving information from open source; such as the yearbook, pamphlets and open announcements may negate part of the challenge on privacy will also be considered in due course.

68.  D2 and D5 elected to remain silent nor did they call any defence witness.  No adverse would be drawn for exercising their legal rights.

Finding of facts

69.  There is not much dispute over the facts and my facts finding, inter alia, is:

(1)  Since the establishment in 1989, HKA had been active and engaged in multiple nexus activities and interaction with Hong Kong and non-Hong Kong entities and people as stated in the investigation report[14] and the recommendations[15]; also had been holding at least one mass rally annually;

(2)  Throughout the entire period concerned, direct and indirect flow of funds was recorded;

(3)  HKA had the five operational goals throughout the years, some, not all, were common in nature with other entities;

(4)  D1, D2 and D5 were amongst the office-bearers at the material time;

(5)  PW1 honestly relied on and evaluated the investigation information, and he bona fide compiled the investigation report[16] and made recommendations[17] to the Commissioner;

(6)  The Commissioner endorsed the whole of PW1’s recommendations without any query or clarification;

(7)  The Secretary of Security approved the measure;

(8)  HKA held a press conference and sent an open letter to the Commissioner with D1, D2 and D5’s cosignatory;

(9)  Up to the due date, none of the required information was provided;

(10)  The Notice was properly served on all Defendants;

(11)  The Defendants were aware of the requirement.

Legality of the Notice

70.  The objective of NSL 43 and Sch. 5 is for prevention and investigation of an offence endangering national security.  The foundations are:

(1)  honest belief in the truthfulness of the information available at that time;

(2)  the analysis was in bona fides;

(3)  the Commissioner made his decision according to the information at that time, not in hindsight.

The Requirement

71.  The Notice:

“According to the police investigation, the Commissioner of Police has reasonable grounds to believe that the “Hong Kong Alliance” is a “foreign agent’ specified in Section 1 of Schedule 5. Under Section 3(1) of Schedule 5, as the Commissioner of Police reasonably believes that it is necessary to issue the requirement of this notice for the prevention and investigation of an offence endangering national security, the Commissioner, with the approval of the Secretary for Security, by this notice served on the “Hong Kong Alliance”, requires the “Hong Kong Alliance” to provide the Commissioner with the following information in writing together with relevant supporting documents, within 14 days:

[1] For the staff members in Hong Kong and the members in Hong Kong since the establishment of the “Hong Kong Alliance”, that is, the following persons:

[i] directors,

[ii] standing committee members (and)

[iii] full-time staff members,

Their personal information, including name, date of birth, type and number of the identification document, contact phone number, residential address, position and employment period shall be provided;

[2] For the activities held in Hong Kong by the “Hong Kong Alliance” from 2014 to present, involving the following organizations or person [regardless of the organizations or person participating in the activities as joint organizers, co-organizers, sponsors or attendees, and including the activities conducted by contracting with the places outside Hong Kong with the use of the communication technology]:

[i] “New School for Democracy” established in Hong Kong,

[ii] “China Human Rights Lawyers Concern Group”,

[iii] political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in Taiwan that pursue political ends and/or their branches in Hong Kong, including “Federation for a Democratic China”, “Asia Democracy Network”, “New School for Democracy”, “The National Endowment for Democracy” and the organizations that receive money from “The National Endowment for Democracy” [including “National Democratic Institute”, “International Republican Institute”,

“Solidarity Center” and “Center for International Private Enterprise”], (and)

[iv] Mark Herman SIMON[18],

Information on the activities concerned, including name, purpose, date, time and place of the activity, details of the person-in-charge, source of fund and breakdown of the expenditure, and all records of contacting the aforesaid organizations or person for organizing, holding, sponsoring or attending the aforesaid activities [including the electronic communication records] shall be provided;

[3] Minutes of the following meetings that the “Hong Kong Alliance” convened in Hong Kong from 2014 to present [including the meetings with the places outside Hong Kong by communication technology] shall be provided:

[i] board meetings and standing committee meetings,

[ii] meetings with political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in Taiwan that pursue political ends and/or their branches in Hong Kong [including “Federation for a Democratic China”], (and)

[iii] meetings with Mark Herman SIMON;

[4] The assets, revenue, sources of revenue and expenditure of the “Hong Kong Alliance” in Hong Kong from 2014 to present shall be provided, that is;

[i] details of account(s) directly or indirectly held with the local bank(s) currently or previously, including the account number, the account holder and/or the ultimate beneficial owner,

[ii] details of the assets like the property, vehicle(s), stock(s), etc., in Hong Kong directly or indirectly held currently or previously,

[iii] all transactions and money dealing, including reason, purpose, date, amount, the bank account and the account book(s) involved, with “New School for Democracy” [whether it was established in Taiwan or Hong Kong or other places]; “China Human Rights Lawyers Concern Group”; “Federation for a Democratic China”; “Asia Democracy Network”; “The National Endowment for Democracy”; and the organizations that receive money from “The National Endowment for Democracy” [including “National Democratic Institute”, International Republican Institute”, “Solidarity Center” and “Center for International Private Enterprise”]; Mark Herman SIMON; and political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in Taiwan that pursue political ends and/or their branches in Hong Kong, (and)

[iv] reason and purpose of CHOW Hang-tung, the vice-chairperson of the “Hong Kong Alliance”, receiving some HK$3,000 from “Asia Democracy Network” on 4^th February 2021 shall be provided.”

The Challenges

72.  In Leung Kwok Hung[19], the Court of Appeal held:

“182. Thus, the proportional analysis has to be applied on two different levels:

(1) examining the systemic proportionality by reference to the legislation or rules in question:

(2) examining the operational proportionality by reference to the actual implementation or enforcement of the relevant rule on the facts and specific circumstances of a case at the operational level.

183. In these appeals, it should be emphasized that we are only concerned with the first level of challenges.  It remains for the court to assess the proportionality on the second level on the facts and circumstances in a particular case if a charge is brought against person.”

Systemic

73.  NSL 43 confers on the law enforcement authorities, including the police, certain power:

“When handling cases concerning offence endangering national security, the department for safeguarding national security of the Police Force of the Hong Kong Special Administrative Region may take measures that law enforcement authorities, including the Hong Kong Police Force, are allowed to apply under the laws in force in the Hong Kong Special Administrative Region in investigating serious crimes, and may also take the following measures:”

……………….

“… (5) requiring a political organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People’s Republic of China, or an agent of authorities or a political organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People’s Republic of China, to provide information;”

The National Security Law

74.  In HKSAR v Lai Chee Ying[20] Court of Final Appeal held:

“37. In our view, in the light of Ng Ka Ling v Director of Immigration (No 2), the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provisions of the Basic Law and the procedure therein, are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic law or the ICCPR as applied to Hong Kong.”

75.  In the light of the above context; NSL is not the subject of any challenges.

The Implementation Rules

76.  Under NSL 43:

“… The Chief Executive shall be authorized, in conjunction with the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region, to make relevant implementation rules for the purpose of applying the measures under the first paragraph of this Article.”

77.  NSL 13 stipulates the composition of the Committee for Safeguarding National Security be:

“The Chief Executive shall be the chairperson of the Committee for Safeguarding National security of the Hong Kong Special Administrative Region. The other members of the Committee shall be the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the head of the department for safeguarding national security of the Hong Kong Police Force established under Article 16 of this Law, the Director of Immigration, the commissioner of Customs and Excise, and the Director of the Chief Executive’s Office.

A secretariat headed by a secretary-General shall be established under the Committee.  The Secretary-General shall be appointed by the Central People’s Government upon nomination by the Chief Executive.”

78.  Under NSL 14:

“The duties and functions of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall be:

…………………

(2) advancing the development of the legal system and enforcement mechanisms of the Region for safeguarding national security; and

…………………

No institution, organization or individual in the Region shall interfere with the work of the Committee.  Information relating to the work of the Committee shall not be subject to disclosure.  Decisions made by the Committee shall not be amenable to judicial review.”

79.  Judicial review is not a term of art; it must be construed accordingly to ordinary language together with the purpose of promulgation.  The only logical understanding is the Committee’s decisions not be amenable to any judicial proceeding or decision.

80.  Also in the light of the above contexts, the Implementation Rules, are not the subject of any challenge.

Operational

81.  NSL 42 and Sch. 5 confer on the Police the power to issue the Notice with consequential penalty in case of non-compliance.  At the same time it is expected the Police will exercise the executive power properly.  Although the charge is failure to comply with the Notice, the essence of the trial is basically on the legitimacy of the Notice as the recipients contended they were not obliged to answer the purported Notice. (ab initio).

82.  Being a foreign agent is not an offence, the impugned provision is the non-compliance of the Notice.  Owing to that special feature in this case, the legality of the Notice requires some studies.

83.  The application of operational proportionality analysis must be taken in full picture and done objectively.

“Reasonable grounds to believe” it to be a foreign agent

84.  The IR already set out in Sch. 1 and Sch. 7 the mandatory standard of the threshold for identification of the target[21] or recipient[22], but none is provided in Sch. 5, the Commissioner adopted the threshold of “reasonable grounds to believe”.

85.  I have the following observations:

(a)  To identify the foreign agent is the initial step to the measure;

(b)  When multiple organizations, people and interactions were involved; some even overseas.  Adopting a stringent standard of identification would be unrealistic;

(c)  Information obtained at the early stage would normally be in loose pieces;

(d)  Ensuring effectiveness is essential[23];

(e)  National security is of cardinal importance;

(f)  There is no existing mechanism for registration nor is there any existing list of foreign agents;

(g)  The overall difficulties in the entire situations.

86.  Unlike Sch. 1 or Sch. 7 which requires strict judicial scrutiny, the application of Sch. 5 is comparatively less rigid and a slightly lower threshold is to be expected.  “Reasonable grounds to believe” is not in itself a low standard but, just slightly lower than “reasonable grounds for suspecting”; with which there is still a series of hurdles to overcome in the balancing exercise.

87.  Having regard to the nature, purpose, necessities and to strike a balance between the measures and the rights concerned; the decision to adopt the threshold of “reasonable grounds to believe” can hardly be criticized.

88.  With their backgrounds, political aims, activities and nexus with both locals and non-locals throughout the years, suffice to say is that “… the Commissioner of Police has reasonable grounds to believe that the ‘Hong Kong Alliance’ is a foreign agent’…”[24] was the correct approach.

The material times

89.  The material time relevant to legality is the point of time when the Commissioner made his decision, not in hindsight. Any subsequent information, no matter how significant it was, was irrelevant as the legitimacy had already been frozen at that point of time.

Reasonable belief as to necessity

90.  All measures taken for prevention and investigation on national security must be executed in a solemn way, and thoroughly, and with the highest standard of professionalism.  A professional investigation body will definitely have its own judgement and strategy to act on the needs raising in different circumstance.  Exploration and analysis of information is the usual course of exercise.  Divergence in the deployed tactics per se cannot be criticised as unreasonable and rejected unless it is found to be obviously absurd.

91.  To evaluate reasonableness of needs, one must not derail the purpose of NSL, the IR and the reality.

92.  Foreign agent is a new concept in Hong Kong without any legal precedent.  Being an agent per se is not an offence and there is no existing mechanism for registration, everything has to start from zero.  Some agents are even hidden, so a comprehensive searching and screening exercise is necessary.

93.  HKA was set up in 1989 and had been carrying out non-stop political activities mainly circulating around the June 4 incident throughout the years.  Most of their activities were nexus of interactions with local and non-local organizations and people.  Inevitably a comprehensive list of directors and full-time staff would be required from the outset to ascertain the background of the organization.  Retrieving their personal information for the purpose of identification was essential to the exercise.

94.  Information of recent years that needed to be ascertained included from the minutes, their interactions, affiliations, and also the monetary flows with some named specified subjects and entities.  HKA’s full list of assets was also essential for the ascertaining of its backgrounds and functions.

95.  Since HKA had been running actively with various entities and people aboard, it is necessary to explore their dealings, connections, monetary flows and asset in order to find out their affiliation and ultimate purpose.

96.  Such requirement for information was nothing like a broad-brush fishing exercise but rather was constrained in terms of periods of time and nature.  The police had taken an abstemious and self-restrained approach.

Use of wordings

97.  “Information” is a term with wide coverage of meanings, which includes all sort of facts or details about a situation, person and event.

98.  According to the Notice:

“To provide the Commissioner with the following information in writing, together with relevant supporting documents, …”

99.  Under the interpretation section of the Personal Data (Privacy) Ordinance[25] states:

“data（資料）means any representation of information (including an expression of opinion) in any document, and includes a personal identifier,”

100.  “in writing” is the means of transmission of information, “supporting documents” is additional information requiring for the purpose of verification/corroboration.  Personal data is a type of information contains personal details.

101.  “Investigation” is a broad description of the exercise, including to retrieve information and verification of its correctness.

102.  The enabling law require the information is NSL 42(5):

“requiring a … to provide information;”

Suffice it to say that NSL 42(5) embraces Sch. 5 s3(1) and the Personal Data (Privacy) Ordinance.  I cannot see the information required is anything would go beyond the perimeter of NSL 42(5) and Sch. 5.

Retrospective

103.  In the present case, there are two aspects to explore:

(1)  At the date of the offence;

(2)  The calling for information of events took place before the promulgation of NSL.

104.  The present charge is non-compliance of the Notice served on 25 August 2021; there is no room for argument on retrospective issue.

105.  It has been suggested that some of the information required was dated before the promulgation of NSL and some even back to 1989 when it was a time of a different regime.

106.  The concept of national security is not just limited to an outbreak at a particular point of time but instead is, as can usually be found in most of cases, a continuation of series of acts with accumulative and generative aim to an ultimate end, be it a part of the adventure under the same or another different regime.  In this case, the claim for retrospective limitation is invalid.

Alternatives

107.  Sch. 5 is intended for prevention and investigation.  Hence no matter the information required was obtained by direct approach or indirect research from their yearbooks and pamphlets.  The more direct must be better; at least to minimize the risk of delay and omission.

108.  It would be unrealistic to expect the Police first to obtain a full collection of yearbooks and pamphlets, then approach the target under investigation for its assistance in verification as to correctness and completeness at its discretion.

109.  Sch. 1 confers on Magistrate the power upon application, to issue search warrant to enter (to use reasonable force if necessary), to search, examine, seize and can detain anyone found therein until the conclusion of the search.

110.  Sch. 7 is about an ex-parte application by the Secretary for Justice to a judge of the Court of First Instance for a Production Order.  The maximum penalty is one year imprisonment and a fine of $100,000, which is double the imprisonment in Sch. 5, upon violation.

111.  From the above information, suffice to say the Sch. 5 measure is the mildest of all.

Ulterior motive

112.  Although the police had initiated another proceedings against HKA, striking off HKA from the Companies Registry is under a different mechanism and criteria.  Any omission from mentioning foreign agent is nothing odd or skeptical which should lead to any reasonable doubt on the genuineness of the Sch. 5 measure taken before me nor was there any ulterior motive behind.

113.  I am satisfied Superintendent Hung held an honest belief in the truthfulness of the investigation information and he acted bona fide on his analysis.

Oppression

114.  The assessment of oppression is not merely on theoretical concept; it must be practical by looking into the whole picture, including the capabilities, resources and the conduct of the recipient.

115.  The requirement of large amount of information, some even aged, within 14 days, sounded tough on the face of it, but there are some additional features of this case:

(1)  A liaison contact point was provided in the Notice, which could form a channel for some constructive and potential relief if necessary;

(2)  The high-profile press conference and the open letter, was a clear message of total refusal;

(3)  That letter clearly stated that the refusal was due to some legal issues involved, which shows the recipients had considered all the information required;

(4)  None of the required information was provided in the end.

116.  I have the following observations:

(1)  Most of the information required was not that aged, only back from 2014;

(2)  Some of the information required is actually the information that needs to be maintained.  Examples are:

(i)   accounting records and the supporting documents for years for spot check by the Inland Revenue;

(ii)  the tax return and the provident fund documents with personal details of all the employees;

(3)  D1 offered an explanation to the Court about the details of some of the requested information which was supposed could have been given to the Police at that time.  From what can be seen, it was not that difficult to retrieve the required information;

(4)  No constructive actual attempt had been made for any retrieval, not even on the easy ones.

117.  Based on the above, it is difficult to justify the significance of hardship was in any sense compromised when the Defendants had provided none, not even some were not that hard to be accessed. There is no room for any claims of oppression.

Balancing

118.  National security is cardinal importance to public interest and the whole nation.  For prevention and investigation, information is the core of the measure; any obstruction would defeat the whole process.

119.  From the facts before me, the requirement was in an abstemious and restrained manner, all confined to reasonable necessary.

120.  Given the close nexus, interactions amongst HKA and the others who shared common objectives and the monetary flows.  I am satisfied all the required information is necessary for the prevention and investigation of an offence endangering national security.

121.  Taken an objective, panoramic and complete evaluation of all evidence before me, I am satisfied an overall fair balance had been achieved.

Issuing the Notice

122.  Although the Commissioner only had the recommendations[26] from Superintendent Hung, it was a refinement of the investigation report[27] in simple and direct terms put in context from one professional to his superior, focusing on the issues for the Commissioner’s decision.

123.  The Commissioner endorsed the recommendations without query or seeking clarification was a sign of his satisfaction to the sufficiency of information which enable him to make his professional decision.

124.  There is no material faulty on the Commissioner’s decision.

Conclusion

125.  In this case, the legality of the Notice is strictly related to the time when it was served; therefore the Court’s consideration is confined to that material moment.

126.  D1’s subsequent explanation with details in Court on some of the events, monetary transactions and nexus which is part and parcel of the information required; which should have been provided before the deadline, not in hindsight.

127.  I am satisfied the Notice was sound and legal at the time when it was served.  There is no grounds to exercise my discretion to reject it.

128.  I rule the Notice was legal and the recipients were obliged to provide the information required.

The Open letter

129.  HKA submitted an open letter co-signed by D1, D2, D5 and others to Commissioner of Police:

“ An Open Letter from the Hong Kong Alliance in Reply to the Commissioner of Police

Regarding the letter dated 25^th August 2021 to the Hong Kong Alliance from the Commissioner of Police [hereinafter referred to as ‘the Letter’] in accordance with Schedule 5 of the Implementation Rules for Article 43 of the National Security Law [hereinafter referred to as Schedule 5], the Alliance would like to make the following responses:

1. The Alliance is not a ‘foreign agent’. Therefore, the Commissioner of Police has no power to request the provision of information from the Alliance under Schedule 5.

2. The Commissioner of Police made an error of law by mistakenly assuming that as long as he ‘had reasonable grounds to believe’ that the Alliance was a ‘foreign agent’ specified in Section 1 of Schedule 5, he could make a request for the provision of information in accordance with Schedule 5. Schedule 5 is application only if the organization is in fact a foreign agent. Merely ‘having reasonable grounds to believe’ does not suffice.

3. The Commissioner of Police failed to provide any justification to explain:

(1) On what reasonable ground did (he) believe that the Alliance was a ‘foreign agent’?

(2) Why did (he) reasonably believe the issuance of the Letter was necessary for the prevention and investigation of an offence endangering national security?

(3) The nature of the offence endangering national security to be investigated and how it was related to the required information;

It is a violation of the rules of natural justice.

In summary, the Alliance is of the view that there is no legal basis for the issuance of the Letter.  Therefore, we will not provide any information as requested in the Letter.”

130.  There is clear evidence of no intention to provide the required information whatsoever.

Statutory defence

131.  Under Sch. 5 s3 (3)(b):

“unless the office-bearer or person establishes to the satisfaction of the court that the office-bearer or person has exercised due diligence and that the office-bearer or person has failed to comply with the notice for reasons beyond the office-bearer’s or person’s controls.”

132.  In the present case, nothing of the above was done to support such.  They took no actual steps to retrieve the required information.  Instead they merely held discussions among themselves.

The Verdict

133.  The conclusion is:

(1)  the Notice was legal when it was served on D1, D2 and D5 respectively;

(2)  the Defendants were obliged to answer;

(3)  the Defendants’ non-compliances was unjustified.

134.  I am satisfied beyond reasonable doubt the prosecution has established their case on every aspect.

135.  I thereby convict D1, D2 and D5 accordingly.

[1] Contrary to section 3(3)(b) of Schedule 5 to the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (Instrument A406A).

[2] 香港市民支援愛國民主運動聯合會

[3] BOR 11

[4] BOR 10

[5] BOR 18

[6] BOR 14 and Personal Data (Privacy) Ordinance, Cap. 486

[7] Exhibit P19(1), also attachment [1]

[8] Exhibit P20(1), also attachment [2]

[9] [2020] HKCA 196

[10] Exhibit P19(1)

[11] Exhibit P20(1)

[12] Exhibit MFI 3, also attachment [3]

[13] The identity of Org 4 is subject to PII and redacted.  D1 presents her case on her own analysis.

[14] Exhibit P19(1)

[15] Exhibit P20(1)

[16] Exhibit P19(1)

[17] Exhibit P20(1)

[18] According to the information accessed, Mark Herman SIMON is the personal assistant to LAI Chee-ying.

[19] Leung Kwok Hung v Secretary for Justice (No 2) [2020] 2 HKLRD 771

[20] [2021] HKCFA 3

[21] Sch. 1 IR 2(2)  “A magistrate may issue a authorizing a police officer with such assistants as may be necessary to enter and search any place if the magistrate is satisfied by information on oath that there is reasonable ground for suspecting that any specified evidence is in the place.”

[22] Sch. 7 IR 2(4)(b)  “where the application relates to a particular person – that there are reasonable grounds for suspecting that the person has information, or is in possession of material, likely to be relevant to the investigation;”

[23] NSL 3

[24] The Notice

[25] s2 of Cap. 486

[26] Exhibit P20(1)

[27] Exhibit P19(1)